KHIMJI& SONS,BHUBANESWAR V. DCIT CIRCLE-1(1), BHUBANESWAR, BHUBANESWAR

ITA 167/CTK/2025

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Khimji & Sons, a partnership firm engaged in the business of manufacturing and retailing jewelry, appealed against the order of the CIT(Appeals) which had dismissed their earlier appeal ex-parte due to non-prosecution. The firm had initially filed a return showing a significantly lower income than assessed by the Deputy Commissioner of Income Tax, leading to a substantial tax demand. The CIT(Appeals) provided multiple opportunities for the firm to present its case, which were not utilized, resulting in the ex-parte dismissal. The ITAT, considering the principles of natural justice, decided to remit the case back to the CIT(Appeals) for a fresh hearing, cautioning the assessee to cooperate fully in the proceedings.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 397013 (ITAT-CUTTACK)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

" ITA No. 167/CTK/2025 (A.Y. 2017-2018) Khimji & Sons 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA-CUTTACK ‘e-COURT’, KOLKATA [Hybrid Court Hearing] Before Shri Duvvuru RL Reddy, Vice-President (KZ) & Shri Rakesh Mishra, Accountant Member I.T.A. No. 167/CTK/2025 Assessment Year: 2017-2018 Khimji & Sons,………………….………..………Appellant 621, Janapath, Saheed Nagar, Bhubaneswar-751007, Odisha [PAN:AAEFK1220E] -Vs.- Deputy Commissioner of Income Tax,…...Respondent Circle-1(1), Bhubaneswar, Aayakar Bhawan, Vanivihar, Bhubaneswar-751007, Odisha Appearances by: Shri K.K. Bal, A.R., appeared on behalf of the assessee Shri S.C. Mohanty, Sr. D.R., appeared on behalf of the Revenue Date of concluding the hearing: May, 06, 2025 Date of pronouncing the order: May 26, 2025 O R D E R Per Duvvuru RL Reddy, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), ITA No. 167/CTK/2025 (A.Y. 2017-2018) Khimji & Sons 2 National Faceless Appeal Centre (NFAC), Delhi dated 8th June, 2023 passed for Assessment Year 2017-18. 2. The appeal is time barred by 552 days in filing the appeal by the assessee. However, Shri Sumeet Binod Roy Khimji, partner of the assessee-firm filed an affidavit dated 2nd May, 2025 as well as condonation petition dated 5th March, 2025 saying that the assessee is not aware of the order passed by the ld. CIT(Appeals) and all the intimation in connection with the hearing of the appeal were communicated to the counsel, but the counsel did not take any step to file response, which resulted the dismissal of the appeal for non-prosecution. When the assessee came to know about the order passed by the ld. CIT(Appeals) ex-parte, the assessee approached the ld. A.R. to prefer an appeal, due to that there was a delay of 552 days in filing the appeal before the Tribunal. Therefore, he pleaded to condone the delay. 3. Considering the facts and circumstances of the case, we are of the view that the assessee was prevented in filing the appeal within the stipulated time. Therefore, we are inclined to condone the delay of 552 days. Hence the delay is condoned. 4. Brief facts of the case are that the appellant-assessee is a partnership firm formed since 2001 and engaged in the business of manufacturing and retailing of gold, diamond jewellery. During the year under consideration, the assessee-company filed its return of income showing total income of Rs.48,28,070/-. The case of the assessee was selected for scrutiny under CASS and the assessment order was framed under section 143(3) determining ITA No. 167/CTK/2025 (A.Y. 2017-2018) Khimji & Sons 3 taxable income at Rs.2,63,38,760/- and tax payable thereon at Rs.2,21,79,366/-. On being aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals). 5. The ld. CIT(Appeals) has given several opportunities to the assessee to substantiate its claim, but the appellant neither filed the written submission nor represented the case before the ld. CIT(Appeals). Thereafter the ld. CIT(Appeals) dismissed the appeal ex-parte on 8th June, 2023. 6. On being aggrieved, the assessee preferred an appeal before the ITAT. 7. At the time of hearing, ld. Counsel for the assessee prayed before the Bench that the impugned order be set aside and remitted back to the file of ld. CIT(Appeals) for deciding it afresh. 8. At the outset, ld. D.R. brought to my notice that the assessee did not produce the relevant documents as asked by the ld. Assessing Officer during the assessment proceedings. Therefore, the ld. Assessing Officer passed the assessment order assessing the taxable income at Rs.2,21,79,366/-. Thereafter the assessee preferred an appeal before the ld. CIT(Appeals). The ld. CIT(Appeals) has given many opportunities to the assessee and the assessee neither filed written submission nor any evidence before the ld. CIT(Appeals). He further submitted that before the ITAT, the assessee did not substantiate its claim. Therefore, he pleaded to uphold the order passed by the ld. CIT(Appeals). ITA No. 167/CTK/2025 (A.Y. 2017-2018) Khimji & Sons 4 9. We have heard the rival contentions and perused the material available on record. Considering the facts and circumstances of the case, we are inclined to set aside the order passed by the ld. CIT(Appeals) in order to meet the principle of natural justice, and remit the matter back to the file of ld. CIT(Appeals) with a direction to provide one more opportunity of being heard to the assessee. At the same breath, we also hereby caution the assessee to promptly co-operate with the proceedings before the Ld. CIT(Appeals) failing which the Ld. CIT(Appeals) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials available on the record. Thus, the grounds raised by the assessee are allowed for statistical purposes. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 26/05/2025. Sd/- Sd/- (Rakesh Mishra) (Duvvuru RL Reddy) Accountant Member Vice-President (KZ) Kolkata, the 26th day of May, 2025 Copies to :(1) Khimji & Sons, 621, Janapath, Saheed Nagar, Bhubaneswar-751007, Odisha (2) Deputy Commissioner of Income Tax, Circle-1(1), Bhubaneswar, Aayakar Bhawan, Vanivihar, Bhubaneswar-751007, Odisha ITA No. 167/CTK/2025 (A.Y. 2017-2018) Khimji & Sons 5 (3) Commissioner of Income Tax (Appeals), NFAC, Delhi; (4) CIT - ; (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. "